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Wait for the Drunk Driver to Swerve?

When anonymous callers report drunk drivers, do the police have to wait for the driver to swerve before making the stop? Although worded differently, this question was recently posed to the United States Supreme Court, though the Court declined to answer.

Courts throughout the country have reached different conclusions in cases of anonymous callers reporting drunk drivers. Some courts approve of police officers stopping a car based only on the anonymous caller’s information. Other courts require the police themselves to observe a traffic infraction before initiating the stop.

Virginia recently sought the Court’s review of a case that involved an anonymous caller reporting a drunk driver, thus providing the Court an opportunity to get the lower courts in sync on this issue. On Oct. 20, 2009, the Court denied the petition, thus avoiding the question and leaving the lower courts deeply divided.

Although the Court recently declined to answer the specific question of whether an anonymous caller justifies a traffic stop of a possible drunk driver, the Court has previously provided some guidance on “anonymous tips” and “reasonable suspicion to stop.” Information provided by anonymous callers may, at least when corroborated by law enforcement’s observations, provide sufficient justification for an investigatory stop.

An investigatory stop (such as a traffic stop) is permissible under the Fourth Amendment if, when viewed under the totality of the circumstances, it is supported by reasonable suspicion. Because the credibility of an anonymous caller is unknown, the determinative factor in these cases is whether the caller provides “sufficient indicia of reliability” such that the information they provide is reliable enough to provide reasonable suspicion.

Sufficient Anonymous Tip

The anonymous caller in Alabama v. White told an officer that a Ms. White would be leaving a particular apartment at a particular time to go to Dobey’s Motel, that she would be leaving in a Plymouth station wagon with a broken taillight, and she would be carrying cocaine in a brown attaché case. Two officers went to the apartments, located the vehicle, and saw her come out of the apartment building and leave in that vehicle.

The officers followed her until they were close to the motel. They stopped her and found drugs in the vehicle pursuant to a consent search. The Court ruled that this was a close case, but that the tip, “as corroborated by independent police work, exhibited sufficient indicia of reliability to provide reasonable suspicion” for the stop.

The Court made note of the caller’s ability to predict White’s future movement as an important factor. He obviously had insider knowledge of the situation. The police were able to corroborate significant aspects of the caller’s predictions and thus create some degree of credibility on behalf of the informant, making the informant’s other allegations (regarding her possession of narcotics) more believable.

Insufficient Anonymous Tip

In a later case, Florida v. J.L., the Court found that an anonymous tip lacked sufficient reliability to justify a Terry stop and frisk. The caller stated a young black male was standing at a particular bus stop wearing a plaid shirt and carrying a gun. The police located three black males at the bus stop, one wearing a plaid shirt. An officer approached him, frisked him and seized a gun from his pocket. The Court determined that this was an illegal search because the only evidence of any wrongdoing was the information provided by the anonymous caller, whose credibility was not established. The caller did not explain how he knew about the gun and did not provide any inside knowledge or predictive information that the police could corroborate. The “bare bones” information that the police relied on to conduct the frisk was no more insightful than what any bystander could have observed.

The Court distinguished these cases by stating that a caller who simply provides physical descriptions will help the police correctly identify the person whom the tipster is referring to, but they do not reveal intimate knowledge of concealed criminal activity. That is, the caller who was able to accurately predict the movements of White (going to Dobey’s Motel) established a higher level of credibility.

The caller in J.L. did not provide any predictive information that could be tested by the police to support the caller’s credibility, nor did he provide any other reason to trust him. If that caller had explained how he knew about the gun or demonstrated knowledge of the suspect beyond what any person driving by would know, then he would have been more credible.

Anonymous Tips and Drunk Drivers

The problem with relying on anonymous callers to support a traffic stop is that the caller’s credibility is unknown, and it is generally unreasonable for the police to rely on an anonymous tipster without making some assessment of their reliability. However, in the context of drunk drivers, a caller’s tip goes to the assertion of the illegal activity itself (as required by J.L.) which is open to public view, as opposed to a crime that is concealed from view (such as possession of a hidden weapon).

Because they are reporting a crime when they are witnessing it in open view, as many public programs encourage citizens to do, the basis of their knowledge of the criminal activity is evident and provides some intrinsic credibility. Even so, there is still the problem that the police will not observe any behavior that satisfies the standard of reasonable suspicion of criminal activity unless they follow the vehicle and make their own determination.

The majority of the courts examining the question have upheld investigative stops of allegedly drunk or erratic drivers, even when the police did not personally witness any traffic violations before conducting the stops. Several state Supreme Courts have decided, even in the wake of the J.L. decision, that an anonymous tip, absent an officer’s corroboration of erratic driving, can provide sufficient indicia of reliability to justify a stop.

These courts highlighted the imminent danger of having a drunk driver on the highway and compared it to part of the J.L. decision, which stated some circumstances such as “a report of a person carrying a bomb” may not require the same indicia of reliability from an anonymous tipster.

Other factors that influenced the courts were the possibility of identifying callers through their involvement at the scene or with caller identification technology, the inherent reliability of contemporaneous reporting of an on-going crime, and consideration of the quality and quantity of the information provided by the caller.

They also note that there are no good alternatives for law enforcement once they have identified a vehicle that a caller has reported as dangerous. They either have to effect the traffic stop based on the tip, or follow the vehicle and “wait for the swerve,” which subjects the public to a real and well-established danger.

A minority of courts take Virginia’s position requiring police to personally observe driving that indicates the driver is intoxicated and therefore justify an investigatory stop. These courts are heavily influenced by the J.L. decision and find that anonymous tips must be corroborated before they can be the basis for reasonable suspicion for a traffic stop.

The corroboration of innocent details (vehicle description, direction of travel) is not sufficient justification for a stop; the officer must corroborate the erratic driving (the officer has to actually observe dangerous driving for himself) before a stop is justified.

In the Virginia case, the caller provided a description and location of the vehicle, and described and named the driver, but the caller remained unidentified. The court expressed concern about the potential for prank callers and noted that because the caller was unknown, she could lie with impunity. Because the caller’s credibility could not be established, the officer had to observe conduct that justified a stop.

The officer saw the vehicle slow down where it was not necessary, slow down in advance of a red light, then brake again to stop for the light, and finally pull to the side of the road and stop of his own accord. The officer then turned on his lights and began the traffic stop. Viewed in the context of the totality of circumstance, because the car did not swerve and did not indicate involvement in the criminal act of driving under the influence, and because the tipster’s credibility was unknown, the stop was unjustified, according to that Court.

Failure to Answer

Chief Justice Roberts complained in his dissent that the Supreme Court’s failure to address this hot button topic leaves the courts in conflict over this issue, and indeed they are. Most of the states that have analyzed this question have found that the risk of waiting for the police to observe dangerous driving such as swerving is too great, especially in light of the well-known tragic consequences of drunk driving. The states that require the police to observe dangerous driving themselves rely heavily on the fact that callers could merely be harassing other drivers and that an unknown caller lacks credibility.

The Court’s refusal to hear the Virginia case left the Virginia Supreme Court decision in place, but that only answers the question for Virginia. Because courts are reaching different conclusions in this area of law, it is important for officers to learn what the law requires in their respective jurisdictions. Until the Supreme Court answers this question, the lower courts are likely to remain in conflict.

Randy Means is a partner in the Charlotte, NC law firm of Thomas and Means, LLP, and specializes entirely in police operations and administration. He is the primary legal instructor for the IACP. He can be reached at rbmeans@aol.com.

In her 20-year career, Pam McDonald has worked as a patrol officer, a felony prosecutor and a college professor specializing in police issues. She is currently assisting Randy Means. She can be reached at pammcdonaldfirm@aol.com.